State v. Orton

1
NOT DESIGNATED FOR PUBLICATION

No. 115,201

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JULIUS LELAND ORTON,
Appellant.


MEMORANDUM OPINION

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed August 4,
2017. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Julius Leland Orton, a resident in the Sexual Predator Treatment
Program (SPTP) at Larned State Hospital, appeals following his conviction for a single
count of traffic in contraband in a care and treatment facility. Orton argues the district
court erred by (1) denying his motion to suppress evidence and (2) denying his motion in
limine to exclude evidence that he was a resident of the SPTP. Finding no error, we
affirm Orton's conviction.



2
FACTS

On September 9, 2014, Charity Irvin, a mental health disability technician at the
Larned SPTP, was instructed to conduct a search of Orton's room. Orton was a "very,
very noncompliant high diabetic" and had been placed on a diabetic diet. Irvin was told to
search for sugary food items because Orton's blood sugar had been running high. Irvin
searched Orton's entire room extensively and located several sugary food items. As part
of her search, Irvin looked through DVD cases that were located on a shelf next to
Orton's television. Irvin discovered an adult entertainment DVD titled "Desperately
Seeking Seka" inside one of the cases. Orton was present during part of the search. When
asked about the DVD, Orton claimed that it belonged to another resident and that he had
obtained the required team treatment approval to borrow it. But Orton was unable to
provide any documentation of such approval. It was later discovered that the DVD
depicted both males and females in a complete state of undress engaging in sexual
activity. Possession of this DVD violated provisions of the SPTP Resident Handbook,
which prohibited possession of "[u]nacceptable sexual materials."

The State charged Orton with traffic in contraband in a correctional institution or
care and treatment facility. Prior to trial, Orton filed a motion to suppress the DVD
evidence, alleging that residents of the SPTP retained an expectation of privacy in their
rooms and the warrantless search of his room unreasonably infringed on his right to
privacy in violation of the Fourth Amendment to the United States Constitution. In
response, the State asserted that any expectation of privacy retained by Orton should be
considered diminished "by virtue of his civil commitment to SPTP and it must therefore
yield to SPTP's paramount interest in institutional security."

Following a hearing, the district court denied Orton's motion to suppress. In its
ruling, the court focused on whether Orton had standing to contest the search based on a
reasonable expectation of privacy in his room. The court concluded:
3
"The fact that staff has access to Mr. Orton's room and the fact that Mr. Orton
knew of the contraband requirements and knew of the policy to conduct shakedown
searches, the location of the DVD within Mr. Orton's room all point to the fact that Mr.
Orton under a totality of the circumstances of this case did not have a subjective
expectation of privacy in his room. Furthermore the objectively reasonable standard is
also failed to be met, in that the safety and security of the institution would trump Mr.
Orton's individual privacy interest or expectations. The issue of safety and security for
Mr. Orton, other residents and staff is a paramount concern. Additionally the handbook is
in place to provide notice of what is objectively reasonable as a matter of law. Clearly
DVDs may well be permissible and be an intended use for the personal use of a resident,
but a DVD consisting of pornographic material or certainly representing as contraband is
not intended use of a DVD product. Therefore the objectively reasonable standard would
fail as well."

Thereafter, Orton filed a motion in limine asking the district court to exclude
evidence that he had been civilly committed to Larned's SPTP, arguing that such
evidence was irrelevant and prejudicial. After considering the arguments set forth in
support of the motion, the district court denied the request, ruling that evidence of Orton's
civil commitment to the SPTP could be admitted at trial because it constituted an element
of the crime that the State was required to prove.

The case proceeded to trial, and a jury convicted Orton as charged. The district
court sentenced Orton to 43 months in prison with a postrelease supervision term of 24
months.

ANALYSIS

Orton raises two arguments on appeal. First, he argues the district court erred by
denying his motion to suppress evidence. Second, he contends the court erred by denying
his motion in limine. We address each of Orton's allegations in turn.

4
1. Motion to suppress

Orton argues that the district court erred by denying his motion to suppress
evidence. First, Orton contends the district court erred in holding he did not have standing
to challenge the search of his room, which requires both a subjective and objectively
reasonable expectation of privacy in his room. Orton further contends the district court
erred in finding that the search itself was reasonable notwithstanding the fact that Irvin
exceeded the original scope of the search—to look for prohibited food items—when she
looked through the DVDs.

At trial, Orton raised a continuing objection to the district court's suppression
ruling, thereby preserving the issue for appeal. See State v. Richard, 300 Kan. 715, 726,
333 P.3d 179 (2014) (when district court denies motion to suppress, moving party must
object to introduction of that evidence at time it was offered at trial to preserve issue for
appeal). Where, as here, the material facts to a district court's decision on a motion to
suppress evidence are not in dispute, the question of whether to suppress is a question of
law over which an appellate court has unlimited review. See State v. Stevenson, 299 Kan.
53, 57, 321 P.3d 754 (2014).

The Fourth Amendment protects against unreasonable searches and seizures. State
v. Brittingham, 296 Kan. 597, 601, 294 P.3d 263 (2013). But the Fourth Amendment is
not implicated when the person challenging the search had no reasonable or legitimate
expectation of privacy in the place that was searched. State v. Robinson, 293 Kan. 1002,
1013, 270 P.3d 1183 (2012). To establish a legitimate expectation of privacy, a defendant
must demonstrate a subjective expectation of privacy in the area searched and that the
expectation was objectively reasonable. 293 Kan. at 1014. If a party fails in this burden,
he or she does not have standing to bring a Fourth Amendment challenge. See 293 Kan.
at 1016.

5
Court rulings concerning the expectation of privacy of participants in the SPTP
have evolved with the passage of time. First, in Merryfield v. Turner, No. 100,059, 2008
WL 4239118, at *3 (Kan. App. 2008) (unpublished opinion), a panel of our court
extended the longstanding rule of no expectation of privacy by prisoners to participants in
the SPTP. Four years later, a different panel of our court ruled that in light of an
intervening Eighth Circuit ruling dealing with pretrial detainees, participants in the SPTP
retain their Fourth Amendment right to be free from unreasonable searches. Bailey v.
Howard, No. 106,573, 2012 WL 1072816, at *3 (Kan. App. 2012) (unpublished opinion).
But the court went on to hold in that case that Bailey's limited expectation of privacy in
his room did not outweigh the State's compelling interest in searching for and
confiscating contraband for treatment and security purposes. 2012 WL 1072816, at *6. In
2014, another panel of this court issued two separate opinions on the same day that dealt
with the issue differently than either Merryfield or Bailey. See State v. Case, No. 109,339,
2014 WL 349605, at *11 (Kan. App. 2014) (unpublished opinion), and State v. Chubb,
No. 109,340, 2014 WL 349610, at *6 (Kan. App. 2014) (unpublished opinion). In both
cases, the panel ruled that personal privacy expectations should be evaluated by applying
the Robinson two-part test to all of the facts and circumstances in each individual case. In
Robinson, our Supreme Court held that in order to establish a legitimate expectation of
privacy, a defendant must demonstrate a subjective expectation of privacy in the area
searched and that the expectation was objectively reasonable. 293 Kan. at 1014. If a
defendant fails in this burden, he or she does not have standing to challenge the search
under the Fourth Amendment. 293 Kan. at 1016. The parties agree that the Robinson test
is applicable here.

At the suppression hearing, the State presented testimony from Sean Wagner, the
Larned SPTP Director. Orton testified for the defense.

Wagner testified that each SPTP resident has their own room, which is
approximately 8 feet by 10 feet. Each resident has a key to his or her room. Other patients
6
are not allowed inside the rooms, and no one else can access the rooms except for staff.
Wagner explained that the residents have different levels of privilege. Orton had the
highest privilege level, meaning that he could come and go within the unit, he did not
have a curfew, he was permitted to have a television and access to cable, and he could
order food and other property not on the contraband list.

Wagner further testified that each SPTP resident is provided with a Resident
Handbook upon arrival. The handbook provides reference and guidance for the residents'
daily living and specifically lists items that residents are not allowed to possess. The
handbook also describes the ability of the SPTP staff to search individual resident rooms
for the purpose of safety and security. Wagner stated that this information would have
been provided to Orton. Wagner testified that the SPTP staff do periodic room searches
and will seize any unauthorized contraband. These searches may be performed randomly
or when the staff hears about the presence of contraband or of something that might
compromise the safety and security of the facility and staff. Wagner explained that
Orton's room was searched because his blood sugar had been extremely high for some
time, despite the fact that a doctor had placed him on a diabetic diet and he had been
restricted from purchasing outside food.

Orton testified that he lived alone in his room. The room had a locker, a desk with
shelving, a shelf above the locker for a television and stereo, a bed, and a toilet. The door
locked automatically when he left and could only be accessed by a key. Orton was the
only person with access to the room, other than staff. Orton stated that he had a green
badge, which was the highest privilege level. Orton could request a pass to visit other
residents, had no curfew, could order food from different vendors, and could have a
television, a stereo, and video games in his room. Orton kept his DVDs in a carousel
holder on the shelf above his television, which was in plain view in his room. Orton
expressed a belief that he had privacy in his room because no one else was allowed inside
and staff was only supposed to be there in his presence. Orton stated that he had been
7
present for searches of his room. Orton admitted that he had observed staff searches of
other residents' rooms, he was aware that searches are generally a part of the SPTP
operation, and he was familiar with the SPTP handbooks. Orton stated that he had
purchased the food items containing sugar before he was placed on a dietary restriction
but agreed that they were in his possession. Orton conceded that he was not allowed to
possess certain items, including pornographic material and other listed contraband.

Based on this testimony, the district court held that Orton lacked standing to
challenge the search. Specifically, the court found Orton lacked both a subjective and an
objectively reasonable expectation of privacy in his room. "An appellate court evaluates a
defendant's subjective expectation of privacy as a question of fact to be reviewed based
on the evidence presented, while the determination of whether that subjective expectation
is objectively reasonable is considered as a question of law. [Citation omitted.]" Case,
2014 WL 349605, at *5.

a. Subjective expectation of privacy

"A defendant invoking the protection of the Fourth Amendment 'must demonstrate
that he [or she] personally has an expectation of privacy in the place searched.'" United
States v. Maestas, 639 F.3d 1032, 1035 (10th Cir. 2011). Orton argues that he had a
subjective expectation of privacy in his room due to the fact that certain civil liberties he
was denied in prison had been restored in the SPTP and that his release from prison
enhanced his right to be free from unreasonable searches and seizures. To that end, Orton
notes that he had the ability to secure his room against entry by others with a key that was
provided by the facility.

Regardless of Orton's freedom within the facility and his ability to secure his
room, SPTP staff had the ability to access the residents' rooms electronically at any time.
The DVD in question was found on the shelf next to Orton's television, apparently in
8
plain view. Although the DVD did not appear to be visible until Irvin opened the case,
the Resident Handbook provides that staff had the ability to search residents' rooms "at
any time without the resident's presence, knowledge or permission" in order "to deter the
introduction, fabrication, and/or possession of contraband and/or prohibited items." Orton
testified that he was familiar with the SPTP handbooks, that he knew searches occurred
within the SPTP, and that he had been present for searches of his room and other
residents' rooms. Taken together, there is substantial competent evidence to support the
conclusion that Orton could not have had a reasonable expectation of privacy in his room.

b. Objectively reasonable

But even if Orton did have a subjective expectation of privacy in his room, he
cannot show that his belief was objectively reasonable. Under the second step of the test
for standing, we must ask whether Orton's subjective expectation of privacy "is one that
society is prepared to recognize as reasonable." See State v. Huber, 10 Kan. App. 2d 560,
566, 704 P.2d 1004 (1985). A subjective expectation is reasonable "if it arises from a
source 'outside the Fourth Amendment, either by reference to concepts of real or personal
property law or to understandings that are recognized and permitted by society.'" United
States v. Gordon, 168 F.3d 1222, 1226 (10th Cir. 1999).

Relying on provisions in the Kansas Sexually Violent Predator Act (KSVPA),
K.S.A. 59-29a01 et seq., Orton suggests that his personal expectation of privacy in his
room was objectively reasonable. See K.S.A. 2016 Supp. 59-29a22(b)(9) (SPTP residents
are to be housed in a facility "designed to afford patients with comfort and safety, to
promote dignity and ensure privacy"); K.S.A. 2016 Supp. 59-29a22(b)(18) (requiring that
patients be "provided a reasonable amount of individual storage space" for possession of
personal property); K.S.A. 2016 Supp. 59-29a22(b)(19) (affording "[r]easonable
protection of privacy in such matters as toileting and bathing").

9
But Orton's argument ignores the language in K.S.A. 2016 Supp. 59-29a22(b)(18),
which permits residents "[t]o possess personal property in a reasonable amount, as long
as the property complies with state laws and facility rules and policies. . . . In no event
shall a person be allowed to possess or store contraband." Moreover, there is nothing in
the KSVPA that provides SPTP residents with complete privacy or otherwise states that
residents' rooms will not be searched. Any privacy contemplated by the KSVPA would
not outweigh the State's interest in maintaining a safe, secure facility. As previously
discussed, the Resident Handbook allows SPTP staff to search residents' rooms at any
time in order to deter the introduction or possession of contraband or prohibited items.
Given the staff's ability to conduct a search at any time, society will not recognize Orton's
subjective expectation of privacy in his room as reasonable.

Because Orton cannot demonstrate a subjective expectation of privacy in his room
or that the expectation was objectively reasonable, he lacked standing to challenge the
search under the Fourth Amendment. Since Orton did not have standing to object to the
search, whether the warrantless search of Orton's room was unreasonable under the
circumstances is moot. See Robinson, 293 Kan. at 1014, 1016. As a result, the district
court properly denied Orton's motion to suppress.

2. Motion in limine

Orton argues the district court erred by denying his motion in limine to exclude
evidence that he was a resident of the SPTP.

The State charged Orton with a single count of traffic in contraband in a
correctional institution or care and treatment facility, which is defined as "without the
consent of the administrator of the correctional institution or care and treatment facility
. . . [i]ntroducing or attempting to introduce any item into or upon the grounds of any
correctional institution or care and treatment facility." K.S.A. 2016 Supp. 21-5914(a)(1).
10
The jury was instructed that in order to find Orton guilty of this crime, the State was
required to prove:

"1. The defendant had the unauthorized possession of a DVD titled Desperately
Seeking Seka while in a care and treatment facility.
"2. The defendant did so intentionally, knowingly, or recklessly.
"3. The defendant acted without the consent of the administrator of the care and
treatment facility.
"4. This act occurred on or about the 9th day of September, 2014, in Pawnee County,
Kansas."

The district court denied Orton's motion in limine on grounds that evidence of his
commitment to the SPTP was admissible because it constituted an element of the crime
the State was required to prove. The court informed the parties, however, that if defense
counsel requested it, the court would give a limiting instruction to the jury regarding this
evidence.

Before the trial started, defense counsel renewed Orton's objection to introduction
of evidence that Orton was a resident of the SPTP, which was sufficient to preserve the
issue for appeal. See State v. Sprague, 303 Kan. 418, 432-33, 362 P.3d 828 (2015) (when
district court denies motion in limine and evidence is introduced at trial, moving party
must make timely and specific objection at trial to admission of evidence to preserve
issue for appeal). The district court again overruled Orton's objection, noting that the
State's evidence would involve policies specific to the SPTP and that "there is really no
way around the fact that Mr. Orton is presently a resident of that program at Larned State
Hospital." At defense counsel's request, the district court provided the following limiting
instruction to the jury, both during the court's opening remarks and after the close of
evidence:

11
"The parties agree that the Court has previously ruled as a matter of law that the
specific nature of the criminal history of Julius Leland Orton is not relevant to
determination of the issues presented in this case, nor is the reason that Mr. Orton was a
resident of the Sexual Predator Treatment Program on September 9, 2014, a relevant
fact."

An appellate court applies a similar review of a decision regarding a motion in
limine to that of a decision regarding an evidentiary ruling. The court must first
determine the relevance of the challenged evidence, i.e., whether the evidence is
probative and material. The district court's determination that the evidence is probative is
reviewed for abuse of discretion; the court's determination that the evidence is material is
subject to de novo review. State v. Frierson, 298 Kan. 1005, 1015, 319 P.3d 515 (2014).
If the evidence is relevant, the appellate court then determines, de novo, which rules of
evidence or other legal principles govern the admission of the evidence in question.
Appellate review of the district court's application of the pertinent legal rules and
principles depends upon whether the rule or principle permits the district court to exercise
its discretion or whether the rule raises questions of law. Next, the appellate court must
consider whether the district court abused its discretion in weighing the probative value
of the evidence against the potential that the evidence will unfairly and prejudicially
surprise a party who has not had reasonable opportunity to anticipate the evidence. 298
Kan. at 1015-16.

a. Relevance

Evidence is relevant if it has any tendency in reason to prove any material fact.
K.S.A. 60-401(b); State v. Page, 303 Kan. 548, 550, 363 P.3d 391 (2015). This definition
encompasses two elements: a materiality element and a probative element. Evidence is
material when the fact it supports is in dispute or in issue in the case. State v. Bowen, 299
Kan. 339, 348, 323 P.3d 853 (2014). Evidence is probative if it has any tendency to prove
12
any material fact. State v. Dupree, 304 Kan. 43, 63, 371 P.3d 862, cert. denied 137 S. Ct.
310 (2016).

Evidence that Orton was a resident of the SPTP was both material and probative
because it aided in establishing an essential element of the crime—that Orton was in a
care and treatment facility. Orton does not dispute that in order to prove its case, the State
was required to prove that he was in a care and treatment facility. But Orton claims that
the jury did not need to know that he had specifically been committed to the SPTP, as the
State was not required to prove that he was a sexual predator.

Contrary to Orton's argument, evidence of his commitment to the SPTP in
particular was relevant because the State was required to prove that Orton's possession of
the DVD in question was unauthorized and without consent of the administrator of the
care and treatment facility. This necessarily required witness testimony and other
evidence of policies specific to the SPTP, including the relevant provisions in the
Resident Handbook that defined the DVD in question as contraband and prohibited its
possession by SPTP residents.

b. Probative value vs. prejudicial impact

Given that evidence regarding Orton's commitment to the SPTP was relevant, we
must next determine whether the district court properly found that the evidence was
admissible. Even if evidence is relevant, a district court has discretion to exclude it where
the court finds its probative value is outweighed by its potential for producing undue
prejudice. See K.S.A. 60-445. An appellate court reviews any such determination for an
abuse of discretion. See State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013). A
judicial action constitutes an abuse of discretion if the action is (1) arbitrary, fanciful, or
unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v.
Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). To demonstrate an abuse of discretion, it is
13
not enough to show that the evidence was prejudicial; rather, the litigant challenging the
admission of the evidence must "show that unfair or undue prejudice arising from the
admission of the evidence substantially outweighed its probative value." See State v.
Vasquez, 287 Kan. 40, 53, 194 P.3d 563 (2008).

Orton claims that the probative value of evidence that he was a resident of the
SPTP was outweighed by the prejudice it would cause him because it effectively
informed the jury that he had been convicted of a sex offense, branded him a "'sexual
predator,'" and implied that he was a threat to the community. Orton asserts that evidence
of his commitment to the SPTP allowed the jury to make inferences against him that were
irrelevant to their decision.

As earlier stated, this evidence was clearly probative because it established both
that Orton was a resident of a care and treatment facility and that the DVD constituted
contraband not permitted by the SPTP, which were relevant material facts in dispute.
Although evidence of Orton's commitment to the SPTP was arguably prejudicial, it
cannot be said that any prejudice arising from admission of this evidence would
substantially outweigh its probative value. Evidence that Orton was a resident of the
SPTP only informed the jury of his confinement in a specific care and treatment facility,
a fact that Orton concedes "would have taken some effort" to keep from the jury. The
district court instructed the jury—both before and after the presentation of evidence—that
neither Orton's criminal history nor the reason that he was a resident of the SPTP was
relevant to their determination. A jury is presumed to follow the instructions given to it.
See State v. Wilson, 295 Kan. 605, 621, 289 P.3d 1082 (2012). The district court did not
abuse its discretion in admitting this evidence. Therefore, the court properly denied
Orton's motion in limine.

Affirmed.